UNITED STATES DISTRICT

COURT DISTRICT OF NEW

HAMPSHIRE

UNITED STATES OF AMERICA

v. Cr. No. 07-189-01-GZS

DANIEL RILEY

DEFENDANT RILEY’S MEMORANDUM

NOW COMES the accused, Daniel Riley, by and through counsel, and, pursuant to this
Court’s directive, presents the following:

QUESTION PRESENTED

At the outset, counsel for the accused must admit that he is unable to fully comprehend
what question is presented by the court. The accused must also OBJECT to being compelled to
preview his closing argument, if that is the matter under discussion here. Notwithstanding that
objection, the accused submits that the Government is on notice that the subjects of self-defense
and defense of others has been raised by him previously, both while he was attempting to act as
his own counsel, and in the time since he reluctantly abandoned that attempt, shortly before trial.
As far as counsel for the accused can comprehend, with lack of sleep and the stress attendant
under the circumstances, the Court is asking the accused to defend and support a decision which
he has not made. The Government suggests, in another straw man argument, that Mr. Riley
intends to rely on the defenses of self-defense or defense of others in his closing argument. This
is incorrect. To the contrary, the accused has not given notice of any such intent. Rather, he
intends, in part, to assert the failure of the Government to meet its burden to prove all essential
elements of all charges presented, a burden that is on the governments alone. The accused does
not, and has not, relied on these defenses, since no force of any kind was used by him in defense
of himself or in defense of others during the time period covered by the indictment. That does
not mean that the subject is foreclosed, especially in light of the evidence presented at trial and
the suggestions made by the Government regarding that evidence (suggestions and inferences
contained in the Government’s opening statement, arguments on objections, and examination of
its own witnesses and cross-examination of other witnesses). These suggestions and inferences
include, but are not limited to, the supposed impropriety of carrying weapons and purported
negative connotations of statements attributed to the defendants and other individuals.

ARGUMENT

It should be obvious at this point in trial that a central issue in dispute is the accused’s
state of mind and the state of mind attributable to other individuals, including the other
defendants. These defendants do not stand accused of having committed the substantive offenses
referenced in the conspiracy counts. The only accusation of action (other than the purported
action of agreeing to the conspiracies) is the aiding and abetting count. The government has not
alleged, as a separate offense, that the accused actually committed the supposed crime of
violence which was supposedly the purpose of the conspiracy (to prevent the United States
Marshals Service from arresting Edward Brown and Elaine Brown). There has been suggestion
that these individuals actually used force to prevent any action by the Government agents.
Consequently, the defenses of self defense and/or defense of others (which actions are protected
by the constitutions and laws of both the state and federal governments), do not apply and cannot
be asserted. However, the issues related to these defenses (as well as the issue of the right to
keep and bear arms) are relevant and have been raised by the Government’s own case and
evidence. If the accused is foreclosed from discussing those issues he will be deprived of fair
trial by an impartial jury, due process, and full confrontation, since the Government has
suggested and raised negative inferences from the evidence, seeking to have the jury conclude
that buying, carrying, and using perfectly legal weapons, ammunition, and targets are, in and of
themselves, improper, illegal, or inculpatory.

The purpose of the actions of the accused during the time period covered in the
indictment is a central issue of contention in this trial. The Government has alleged conspiracies
and those allegations subsume two separate, but related, states of mind - knowingly and
purposely. The Government must establish that their was an agreement by the alleged
conspirators, that it was knowingly and wilfully entered into by the accused, and that the
agreement had a purpose that included the intention to commit a crime of violence. As the Court
knows, evidence presented by the Government’s own witnesses supports the conclusion that
there was no such agreement and that the accused had contrary purposes.

The accused expects the Court to give a mens rea instruction similar to the following:

2.16 Definition of “Willfully”

To act “willfully” means to act voluntarily and intelligently and with the specific intent that
the underlying crime be committed—that is to say, with bad purpose, either to disobey or disregard
the law—not to act by ignorance, accident or mistake.

As the comment to this model instruction states, this definition of “willfully” comes from
United States v. Monteiro, 871 F.2d 204, 208-09 (1st Cir. 1989). For alternate definitions see United
States v. Porter, 764 F.2d 1, 17 (1st Cir. 1985), and United States v. Drape, 668 F.2d 22, 26 (1st Cir.
1992). Specific intent is preferred. United States v. Yefsky, 994 F.2d 885, 899 (1st Cir. 1993). The
alleged crime of violence contains a specific intent, as outlined in the instruction. If the accused had
any other state of mind, especially a contradictory one, then the Government’s case for the
conspiracies fails. This is a matter for the jury to decide, based on the evidence presented. It is not
the burden of the defendant to prove inferences contrary to those urged upon the jury by the
Government. If there is any rational conclusion consistent with innocence which is not fully
excluded by the Government’s evidence, then the jury must acquit.

This is consistent with the definitions of presumption of innocence and reasonable doubt
which the accused expects the Court to present to the jury:
 3.02 Presumption of Innocence; Proof Beyond a Reasonable Doubt

It is a cardinal principle of our system of justice that every person accused of a crime is
presumed to be innocent unless and until his or her guilt is established beyond a reasonable doubt.
The presumption is not a mere formality. It is a matter of the most important substance.

The presumption of innocence alone may be sufficient to raise a reasonable doubt and to
require the acquittal of a defendant. The defendant before you, [__________], has the benefit of that
presumption throughout the trial, and you are not to convict [him/her] of a particular charge unless
you are persuaded of [his/her] guilt of that charge beyond a reasonable doubt.

The presumption of innocence until proven guilty means that the burden of proof is always
on the government to satisfy you that [defendant] is guilty of the crime with which [he/she] is
charged beyond a reasonable doubt. The law does not require that the government prove guilt
beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict. This burden
never shifts to [defendant]. It is always the government’s burden to prove each of the elements of
the crime[s] charged beyond a reasonable doubt by the evidence and the reasonable inferences to be
drawn from that evidence. [Defendant] has the right to rely upon the failure or inability of the
government to establish beyond a reasonable doubt any essential element of a crime charged
against [him/her].

If, after fair and impartial consideration of all the evidence, you have a reasonable doubt as
to [defendant]’s guilt of a particular crime, it is your duty to acquit [him/her] of that crime. On the
other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond a
reasonable doubt of [defendant]’s guilt of a particular crime, you should vote to convict [him/her].
(Emphasis added).

The accused also expects the Court to give further instruction on this subject along the
lines of the approved instruction by Judge Keeton referenced in the notes to the above instruction
in Judge D. Brock Hornby’s 2007 Revisions to Pattern Criminal Jury Instructions for the District
Courts of the First Circuit, at pages 51-52:

As I have said, the burden is upon the Government to prove beyond a reasonable doubt that
a defendant is guilty of the charge made against the defendant. It is a strict and heavy burden, but it
does not mean that a defendant’s guilt must be proved beyond all possible doubt. It does require
that the evidence exclude any reasonable doubt concerning a defendant’s guilt.

A reasonable doubt may arise not only from the evidence produced but also from a lack
of evidence. Reasonable doubt exists when, after weighing and considering all the evidence, using
reason and common sense, jurors cannot say that they have a settled conviction of the truth of the
charge.

Of course, a defendant is never to be convicted on suspicion or conjecture. If, for

example, you view the evidence in the case as reasonably permitting either of two
conclusions—one that a defendant is guilty as charged, the other that the defendant is not
guilty— you will find the defendant not guilty.

It is not sufficient for the Government to establish a probability, though a strong one, that a
fact charged is more likely to be true than not true. That is not enough to meet the burden of proof
beyond reasonable doubt. On the other hand, there are very few things in this world that we know
with absolute certainty, and in criminal cases the law does not require proof that overcomes every
possible doubt.

Concluding my instructions on the burden, then, I instruct you that what the Government
must do to meet its heavy burden is to establish the truth of each part of each offense charged by
proof that convinces you and leaves you with no reasonable doubt, and thus satisfies you that you
can, consistently with your oath as jurors, base your verdict upon it. If you so find as to a particular
charge against a defendant, you will return a verdict of guilty on that charge. If, on the other hand,
you think there is a reasonable doubt about whether the defendant is guilty of a particular offense,
you must give the defendant the benefit of the doubt and find the defendant not guilty of that offense.
(Emphasis added).

The accused submits that there are many possible inferences to be drawn from the evidence
submitted thus far, and the accused has the absolute right to argue based on those inferences and that
evidence.
 Respectfully submitted,

/s/ Sven D. Wiberg

NH Bar No. 8238

Wiberg Law Office, PLLC

2456 Lafayette Road, Suite
7 Portsmouth, NH 03801

(603) 686-5454

CERTIFICATION

I hereby certify that a copy of this pleading will be served upon the Government
and counsel for the other parties by ECF filing on this 3rd day of April, 2008. Due to the nature
of this pleading, assent is unnecessary

/s/ Sven D. Wiberg